Citation Nr: 9807628
Decision Date: 03/16/98 Archive Date: 04/02/98
DOCKET NO. 96-23 409 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to an effective date earlier than July 26, 1994,
for the grant of dependency and indemnity compensation.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
H. Roberts, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1944 to
January 1946. The veteran died on November [redacted], 1991. The
appellant is the surviving spouse of the veteran.
This appeal arises before the Board of Veterans’ Appeals
(Board) from a March 1996 rating decision of the New Orleans,
Louisiana, Regional Office (RO) of the Department of Veterans
Affairs (VA), which granted entitlement to dependency and
indemnity compensation based on 38 U.S.C. § 1151, and
assigned an effective date of July 26, 1994, for that grant.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that an effective date earlier than
July 26, 1994, is warranted for the grant of dependency and
indemnity compensation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports the
grant of an earlier effective date of November 1, 1991, the
first day of the month in which the veteran’s death occurred,
for the grant of entitlement to dependency and indemnity
compensation.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the appellant’s claim has been developed.
2. The veteran died on November [redacted], 1991.
3. The appellant’s VA Form 21-534, Application for
Dependency and Indemnity Compensation by a Surviving Spouse
or Child (Including Accrued Benefits and Death Compensation
Where Applicable), was received by VA on February 20, 1992.
4. The appellant established entitlement to dependency and
indemnity compensation pursuant to the provisions of § 1151
by means of a March 1996 rating decision, which established
an effective date of July 26, 1994, for that grant.
CONCLUSION OF LAW
The evidence supports the grant of an earlier effective date
of November 1, 1991, the first day of the month in which the
veteran’s death occurred, for the grant of entitlement to
dependency and indemnity compensation. 38 U.S.C.A. §§ 1151,
5107, 5110 (West 1991); 38 C.F.R. § 3.154, 3.400, 3.800
(1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the appellant’s claim is
“well grounded” within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991); that is, she has presented a claim that is
plausible. She has not alleged that there are any records of
probative value that may be obtained which have not already
been associated with the claims folder. The Board
accordingly finds that the duty to assist the appellant, as
mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been
satisfied.
The appellant contends that an effective date earlier than
July 26, 1994, is warranted for the grant of dependency and
indemnity compensation. After a review of the record, the
Board finds that the evidence supports the grant of an
earlier effective date of November 1, 1991, the first day of
the month in which the veteran’s death occurred, for the
grant of entitlement to dependency and indemnity
compensation, and to that extent, the appellant’s claim is
granted.
The evidence shows that the veteran died on November [redacted],
1991. The appellant’s VA Form 21-534, Application for
Dependency and Indemnity Compensation by a Surviving Spouse
or Child (Including Accrued Benefits and Death Compensation
Where Applicable), was received by VA on February 20, 1992.
That claim was denied by means of an April 1992 rating
decision. The appellant did not express timely disagreement
to that rating decision. Subsequently, the appellant’s
representative submitted a July 21, 1994, memorandum,
apparently received by VA on July 26, 1994, requesting that
the case be reopened and that VA consider whether
compensation was warranted pursuant to 38 U.S.C. § 1151. A
March 1996 rating decision found that the veteran’s death was
an unintended result of his hospitalization and that
dependency and indemnity compensation was warranted pursuant
to § 1151. That rating decision established an effective
date of July 26, 1994, for that grant, which was the date of
receipt of the claim for compensation pursuant to § 1151 in
the appellant’s claim to reopen.
The appellant avers that the effective date for the grant of
dependency and indemnity compensation should be determined
with reference to her application for dependency and
indemnity compensation which was received by VA on February
20, 1992, within one year of the veteran’s death.
Except as otherwise provided, the effective date of an
evaluation and award of pension, compensation or dependency
and indemnity compensation based on an original claim, a
claim reopened after final disallowance, or a claim for
increase will be the date of receipt of the claim or the date
entitlement arose, whichever is the later. 38 C.F.R. § 3.400
(1996); see 38 U.S.C.A. § 5110 (West 1991). For death due to
hospitalization, the effective date shall be the first day of
month in which the veteran’s death occurred if a claim is
received within one year following the date of death;
otherwise, the effective date shall be the date of receipt of
the claim. 38 C.F.R. § 3.400(i) (1996).
The appellant contends that her formal claim for dependency
and indemnity compensation should be considered a claim for
benefits pursuant to § 1151, and should be used to establish
the effective date for the grant of her dependency and
indemnity compensation. The regulations provide, in a
section entitled “Injury due to hospital treatment, etc.”
that a formal claim for pension, compensation, dependency and
indemnity compensation, or any statement in a communication
showing an intent to file a claim for disability or for death
benefits resulting from the pursuit of a course of vocational
rehabilitation, hospitalization, medical or surgical
treatment, or examination under VA laws may be accepted as a
claim. 38 C.F.R. § 3.154 (1996).
While that section does not specifically state what type of
claim such a communication would be considered in the body of
the text, the title of the regulation and the authority
cited, § 1151, leave no doubt that the section refers to
claims for benefits pursuant to § 1151. Therefore, the
question to be considered is whether the provisions of
§ 3.154 are applicable in this case, such that the
appellant’s February 1992 application for dependency and
indemnity compensation, may be accepted as a claim for
benefits pursuant to § 1151.
The regulatory history shows that § 3.154 was enacted
effective May 29, 1959. The initial version of the
regulation required that a statement in a communication show
intent to file a claim for additional disability or death
benefits due to training, hospitalization, or medical or
surgical treatment, and be received within two years after
such injury or aggravation was suffered in order to be
considered a claim for benefits pursuant to 38 U.S.C. § 351
(renumbered as § 1151). 38 C.F.R. § 3.154 (1959). This
regulation was consistent with the statutory two-year limit
for receipt of claims pursuant to § 351, which provided that
no benefits could be paid where a claim for benefits had not
been received within two years of the injury or aggravation
due to VA treatment. See 38 U.S.C. § 351 (1959)
However, § 3.154 was amended, effective July 20, 1961, “to
permit acceptance of a formal claim for compensation,
pension, or dependency and indemnity compensation as a claim
under 38 U.S.C. 351.” The justification provided for the
amendment was that “there have been instances when a veteran
did not know that hospitalization was responsible for
additional disability until the 2-year statutory period for
filing a claim had elapsed. Under the revised regulation a
claim under 38 U.S.C. 351 will be assumed where, for example,
a formal claim for compensation is received from a veteran
which does not make specific reference to the incurrence or
aggravation of additional disability as a result of
hospitalization.” See Compensation and Pension–Transmittal
Sheet 217 (July 20, 1961). The amended version of § 3.154,
entitled “Injury Due to Hospitalization, Etc.” provided
that a formal claim for pension, compensation, dependency and
indemnity compensation or any statement in a communication
showing an intent to file a claim for disability or for death
benefits resulting from training, hospitalization, medical or
surgical treatment, or examination, filed within two years
after the injury or aggravation was suffered, or death
occurred, may be accepted as a claim. 38 C.F.R. § 3.154
(1961). The regulatory history of this amendment makes it
clear that no reference to § 351 or of any intent to file a
claim for benefits for any disability resulting from VA
treatment is required in order for the formal claim to be
considered a claim for benefits pursuant to § 351. The only
remaining requirement was that a formal claim be received
within two years after the injury, aggravation, or death.
The two year statutory time limit for filing claims pursuant
to 38 U.S.C. § 351 was eliminated by Public Law 87-825
(October 15, 1962). In response to the removal of the two
year statutory time limit, VA amended § 3.154 to its present
form, which allows a formal claim for pension, compensation,
dependency and indemnity compensation, or any statement
showing an intent to file for benefits resulting from VA
treatment to be accepted as a claim. 38 C.F.R. § 3.154
(1962). The language of the regulation shows that either a
formal claim for benefits or a statement showing intent to
file a claim for benefits for a disability due to VA
treatment is required for the claim to be considered a claim
for benefits pursuant to § 1151.
It appears to the Board that § 3.154 was amended, effective
December 1, 1962, with the express purpose of allowing a
formal claim for benefits to establish an effective date for
benefits pursuant to § 1151, as in this case. In the Board’s
view, given the elimination of the statutory two-year limit
for the acceptance of claims, VA would have also eliminated
§ 3.154 unless that regulation, as amended, was intended to
establish an effective date for claims for benefits due to VA
treatment where the cause of injury, aggravation, or death
was discovered at a later date.
The Board finds that § 3.154 serves just such a purpose in
the present claim. The appellant filed a formal claim for
dependency and indemnity compensation within one year of her
husband’s death. After some time had elapsed, and after the
appellant’s claim was reopened, it was shown that there was
additional disability due to VA treatment, and entitlement to
dependency and indemnity compensation was established.
Through the operation of § 3.154, the appellant’s February
1992 formal claim for dependency and indemnity compensation
may be considered as a claim for benefits pursuant to § 1151.
Thus, in determining the effective date for the grant of
dependency and indemnity compensation based upon death due to
VA treatment pursuant to § 1151, the claim considered would
be the appellant’s February 1992 formal claim for dependency
and indemnity compensation.
Therefore, the Board must determine what effective date would
be proper where the appellant’s February 1992 formal claim
for dependency and indemnity compensation is considered a
claim for benefits for the veteran’s death as a result of VA
treatment pursuant to § 1151. For death due to
hospitalization, the effective date shall be the first day of
month in which the veteran’s death occurred if a claim is
received within one year following the date of death.
38 C.F.R. § 3.400(i) (1996). Therefore, the effective date
shall be November 1, 1991, the first day of the month in
which the veteran’s death occurred as the appellant’s claim
was received within one year of that death.
Accordingly, the Board finds that the evidence supports the
grant of an earlier effective date of November 1, 1991, the
first day of the month in which the veteran’s death occurred,
for the grant of entitlement to dependency and indemnity
compensation, and to that extent, the appellant’s claim is
granted. 38 U.S.C.A. §§ 1151, 5107, 5110 (West 1991);
38 C.F.R. § 3.154, 3.400, 3.800 (1996).
ORDER
Entitlement to an earlier effective date of November 1, 1991,
the first day of the month in which the veteran’s death
occurred, for the grant of entitlement to dependency and
indemnity compensation, and to that extent, the appellant’s
claim is granted, subject to the laws and regulations
governing the disbursement of monetary benefits.
M. W. GREENSTREET
Member, Board of Veterans' Appeals
(CONTINUED ON NEXT PAGE)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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